OP-ED | The ‘Burning’ Issue of Flag Desecration

It’s an old argument that dates back at least 100 years. Is burning the United States flag an act of free speech or a crime against good citizenship and common decency?

You might think the argument is moot since a divided United States Supreme Court concluded in 1989 — and again the following year in a separate ruling — that flag desecration is a constitutionally protected form of free speech.

In the late 19th century into the early 20th century, states began passing laws banning flag desecration. These included not only laws protecting the flag from physical abuse such as occurs in a burning, but also from commercial abuse.

Connecticut got into the flag protection arena late in the game. The General Assembly passed a statute in 1969 that was repealed and replaced by another in 1971. The latter act would punish anyone who, among other things, commercially abuses the flag or “publicly misuses, mutilates, tramples upon or otherwise defaces or defiles or puts indignity upon” the flag. Judging by the timing of these statutes, I’d say they were a reaction the angry Vietnam War-era protests that were so common during that era.

There’s not a whole lot of information on the internet about Connecticut’s flag desecration laws, so I turned to Dan Klau, the noted First Amendment attorney in Hartford and author of an outstanding blog on legal issues, Appealingly Brief.

Klau said the 1971 statute was found unconstitutional as a result of a court challenge that started in January 1973. William P. Thoms of East Hartford, a University of Hartford student, asked for an injunction in state court to prevent law enforcement from prosecuting him after he wore an American flag vest. Connecticut’s judges would not oblige him.

While ruling the Connecticut law unconstitutional by a margin of 2-1, the U.S. Second Circuit Court of Appeals refused to grant Thom’s request for an injunction because, the majority opinion said, “the court had no reason to believe police would try to enforce an unconstitutional statute.”

The majority ruled that the Connecticut law was unconstitutional “because it makes criminal that which under the Constitution may not be made a crime.” In an astonishingly literal interpretation of the First Amendment, the dissenting judge said the law “in no way limits the use of defiant or contemptuous spoken words directed toward the flag, nor does it deny or restrain the right to a free and open criticism of the principles for which the flag stands.”

Constitutional or not, Connecticut’s law remains in effect — technically.

“There are lots of statutes around the country likes this,” Klau said. “They sit there on the books. The ruling is not a directive to repeal the statute.”

I’ve long viewed flag desecration — and especially flag burning — as protected speech. It’s understandable that many people, particularly veterans’ groups, would be offended at the sight of a protester publicly torching a flag in anger. But does flag burning pose such a threat to the nation that it warrants amending the Constitution, as dozens of lawmakers have tried to do since the 1990s? Simple statistics would argue otherwise: there are only a handful of such incidents reported each year.

When I was working as a journalist in New York state in 1996, I interviewed the late Rep. Gerry Solomon, a Marine Corps veteran who led the charge four times to get the House of Representatives to endorse a constitutional amendment to protect the flag. I asked him if flag burning was a big problem in the United States. He replied, “Of course it is.” Yet he could not point to a single instance of the odious act in his district.

I was sort of on the fence on the flag-burning issue until I bought my first home in 1990. One of the my first chores was to go out and buy a flag kit so that we could show the colors at our new digs. Inside the box was an abridged copy of the Flag Code of the United States.

The authors of the code were very helpful in telling me what to do with a worn-out flag: “The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.”

Wait a second! If I burn a flag as a sign of respect, it is “dignified.” But if I do it in anger at my country, then I should be “fined under this title or imprisoned for not more than one year, or both,” according to the code.

About a year later, I saw a newspaper photo of group of veterans burning old flags in a 55-gallon barrel — presumably the same veterans who thought the act should be criminalized if you or I did it in protest.

I’d call that a smoking gun. If there’s any better evidence that flag burning is political speech, I’m not aware of it.

Contributing op-ed columnist Terry Cowgill lives in Lakeville, blogs at ctdevilsadvocate.com and is news editor of The Berkshire Record in Great Barrington, Mass. Follow him on Twitter @terrycowgill.

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